WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

FACDL guy Rick Freedman wanted us to give props to the many criminal defense attorneys who have stepped up and volunteered to take a case pro bono (literally "how rumpole is paid") to help ease the PDs work load.

The Sun Sentinel is covering the contretemps over Judge Cohen's advocacy and donation to a domestic violence prevention group here. Judge Cohen sits in the Broward's DV division.

Query: Doesn't the requirement of avoiding the appearance of impropriety require Judges to avoid work for charitable organizations that directly relate to the type of cases they sit on? We mean, a Judge deciding landlord and tenant cases shouldn't donate to tenant's rights groups; a Judge presiding over Med Mal cases shouldn't donate to political action committees seeking to cap attorneys fees, right? So why should a Judge handling DV cases donate to a victim's rights organization?

There are plenty of needy charities that having nothing to do with cases Judge's sit on. Sorry Judge Cohen, but your charitable work smacks of politics. You should recuse yourself from all DV cases, meaning you should be transfered to civil court for a while.

25 comments:

abe laeser
said...

I only wish that persons of such skills could volunteer where the crunch is greatest -- the prosecutor's office. After all, not every case is a P.D. client, and a high percentage of those are resolved early in the process.

Unfortunately, the conflict of interest issue would prevent these same persons from volunteering. Many of them are former prosecutors who could bring maturity and wisdom to the evaluation of the cases. I always hear defense counsel gripe about the lack of judgement of some junior A.S.A.'s. But there is no remedy, is there?

Every single misdemeanor and felony arrest requires scrutiny by a prosecutor. 60,000 felonies and perhaps five times that many misdemeanors every year. No "pro bono" pool to help those hapless warriors. Wish there was one!

I must disagree with Abe on one point- although I agree with his sentiment.

In my experience, the misdemeanor arrests are NOT "scrutinized" in the least. Spend one hour in county court and watch an arraignment say in Judge Krieger-Martin's courtroom. Usually you will see something like this-

Judge: State v . Smith.... hmmm... State have you read the a-form?

ASA: Yes.

Judge- "And you want to proceed against the defendant on the 'vending without a license' where the officer saw the defendant selling a bottle of water at a traffic light for a dollar?"

ASA- yes

Judge- "and you realize the defendant is homeless?"

ASA- yes

Judge:"You should really think about dismissing this."

ASA- "I'll have to contact my chief, and they will have to review the a-form, and then if they decide to dismiss it, they will need to recommend it to the chief of county court. The new chief requires a memo, so basically can we re-set this for a month? Plus, the defendant isn't here so I have to ask for a BW of $10,000.00

(Now here is the thing. Most county court judges would just roll their eyes and dismiss the case. But the new ones might just issue the bench warrant. And then several months from now this homeless guy will spend a month in jail, at taxpayer expense, all because he sold a bottle of water for a dollar to make a quarter for himself. )

Sorry Abe. I greatly respect you. But I am a former ASA and now have a lot of cases in county court. When Janet was there, the in court ASA was encouraged to make legal decisions. Under the current administration they may well be suspended if they dismissed this case, and I am not exaggerating this.

Abe, ASA's in county court prosecute the most ridiculous cases that were automatically nolle prossed during Janet Reno's years: drinking in public, possession of open container under county ordinance (which no one seems to have told prosecutors, cops and judges that it was superseded by F.S, 316.1936 eons ago and now is a non-moving traffic infraction), sleeping in public, serving a beer before food (only in selected locales targeted by the city for "redevelopment"), "mingling", possession of a pool table at certain hours or when the establishment's size is not to the city's loking, etc., etc.

Abe, if you have any influence with KFR please tell her to put a mature person with common sense and life experience as chief of county court and to grant prosecutorial discretion to county court ASA's. Some of them are vert bright and smart but the SAO bureaucratic no-discretion policies hampers them in the exercise of justice and common sense. What better place to teach discretion and decision-making experience than county court and to do the effort to keep these smart-and-bright prosecutors beyond their three-year commitments.

It seems to me that the SAO and judges are more interested in pursuing the $358 in court costs and surcharges charged to defendants in these ridiculous county court cases than in doing real justice and wisely spending prosecutorial resources to actually protect the community.

If the Abed one had any balls he would volunteer to handle a felony defense case. Then he would see how the ASA's jerk the defense around. It would greatly enlarge his experience if he saw it from the other side.

I was an ASA and knew Ada when she was a PD and she was/is great. The news of her resignation is pretty surprising to me. However, I the one thing I remember about Ada is that she was not hurting for money by any means. So I seriously doubt leaving a job paying 140k or so is the reason for leaving. The private sector is not that good.

8:23:00 AM, do you really think people who are convicted of those crimes pay the court costs?

You also say 316.1936 supersedes. You cited to drinking an alcoholic beverage in an automobile. This is totally different than someone drinking a beer in the middle of a public (something that some county ordinances focus on).

Yes, many of the cases county ASAs proceed on are silly. However, there is usually some sort of reason for each and every statute/ordinance; maybe we fail to see it from both sides. Selling water in the middle of the road is harmless for sure. But I am sure the person that does it with a license and trys to follow the laws set out in Florida feel that everyone should follow the rules. Drinking within 100 feet of a store isn't that big of a deal, until it is your store. I'm pretty sure if people were drinking within 100 feet of your law firm, you would think differently.

Granted, many of these crimes should be charged as civil infractions. I just think most of the Defense Bar looks at this with an uppity attitude. Just like many Defendants think ASAs and PDs are rich, perspective is key. I bet they wouldn't think it is a big deal if their attorney was 3 CLE credits short in a reporting term. They probably would think it's silly you cannot practice law just because you didn't sit through a 6 hour lecture.

The State is merely enforcing the law set out by the county, cities, and the State. If you don't like it then either A) take on some of these cases pro bono or B) write elected officials and express your concern. Some people think marijuana should be legal - possibly some prosecutors and even Judges. Should marijuana cases be dropped?

If the Defendant is homeless and PTA'd, the case should be nolle prossed for sure. However, I am sure not every a-form that comes through county is filed. The people there are smart enough to not file on a a PTA'd homeless person (99% of the time, albeit I am sure some slip through). Say it did slip through. Well, that case would probably close out at bonds with CTS when the Defendant is picked up on the bench warrant. That person is then out within a day or two tops. A month is way out of proportion (however I concede you are being sarcastic).

8:23am, I don't see why county open container was necessarily superseded by 316.1936. Many county and city ordinances are prosecutable under the ordinance or under the statute. Obstruction of justice and resisting without violence is one such example.

Blowing one's horn is an infraction under state statute, but is prosecutable as a 2nd degree misdemeanor under the county ordinance. The Eleventh Circuit (Federal) used that once to screw over a 1983 plaintiff who was discriminated against by City of Miami police officers who arrested her, treated her like crap, insulting her, ridiculing her, slammed her head on a car and carted her to jail. The officers did it under the premise that she had only merited the infraction by blowing the horn initially, but the PC was later found on the noise violation which is criminal and was not superseded. Thus the Eleventh Circuit concluded she was not falsely arrested - but they did conclude the use of force by the officer was unreasonable.

The problem is not the SAO on the MISD filings. If we can only get the officers (who are BTW 23yr old children & wanna be cops who are on a power trip) to stop making arrest for selling the bottle of water in the first place - some poor soul might not get shot next week - because there will be more POLICE patrolling serious crime ridden areas instead looking out for the next water bottle selling homeless man.

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Former ASA here. Agree on the county court comments. I had a case where my client was charged with a Domestic Agg Batt. Through depos, victim was shown to be lying. We refused all plea offers and wanted a trial. Felony ASA offered jail, then cc, then probation, then finally reduced it to a misd battery just to get rid of the case. But when it got to the DV division of the county court, the offer went to 364 because the ASA was fifteen minutes out of law school and didnt care that the ten year ASA thought it should be a misdemeanor with CTS. Frustrating to the point of funny and I (in jest) moved for Judge Kelly to bump the case back up to the felony division so I could get less jail time.

I can see Abe's point that the SAO handles 100% of cases through the system. But with no internal filter on the system, the SAO creates its own mess. We on the defense side can tell when a stupid felony arrest will be no actioned. The case is gone within three weeks. But the misdemeanor lags on for months and months. To just blindly prosecute the dumbest of petty crimes to the point of clogging the system is just wasteful of limited resources.